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The difference between the airport and the parking lot of the polling place is the physical location of the gun. You may be inside the polling place but you did not possess the gun in there. In the secure area, your gun went into it and you still possess it so there has to be the defense or exception.

And yes, some words are very vague in the law and possession is one of them. And yes, many of us technically break laws all of the time and do not know it or worry about it. One of my pet peeves is that the law should be clearly written in plain English and should clearly specify what is not allowed. No one can obey the laws without being able to understand them if they try to read them. Even worse are the laws we break by not knowing they exist, such as the city ordinances for each town we might drive through on any given day.

Sorry for the confusion and making it worse. I did use the 46.03(e) improperly to show the defense for showing the gun as an example.

But you are wrong about 46.03 applying only to carrying. Obviously, if it is in your bags you are not carrying it, but when you read 46.03 carefully, it says "possessing or goes with". even when you check you luggage, it is still yours and you still possess it.

This is either a really bad case to use for the example, or the really perfect one. No one (well, in Texas) would ever think of arresting you for still possessing the gun after you have checked the luggage with it inside. But it is still a technical violation of the law. This is why I was saying that the technical reading of the law is so different from what happens in real life, 99.99% of the time. We all need to know the law well for the .01%, but the odds of it happening to us are just so small as to not be a cause of concern to most.

G26ster,

Yes, that is exactly what I mean. It is illegal for you to have a firearm in the secured area of an airport. But if you can prove the defense, then you did it in an allowable way.

An even better example would be the CHL checking their handgun in their baggage at the airport. I have yet to fly without the counter clerk checking the gun to ensure it is unloaded. But it is illegal for a CHL to display the firearm. 46.03(e) would be the exception that allows them to win the case but they if they went to court.

I have to point out that this is sort of a trick question because what the law considers it and how it plays out in daily life are two different things. Technically you are breaking the law, but in normal real life situations everyone, including the cop, would sya ti was not illegal. This is a law shcool and police academy final type question so we understand to read the law as it is written first, then we can apply it. Why arrest someone you know is going to win because he has a defense? But there are cops who will do it for various reasons and it is not illegal arrest.


DrewtheTexan,

You have it exactly. If I violate a law, the prosecution must prove beyond a reasonable doubt that I committed each element of the offense. They do not have to disprove all defenses. But, if I then use a defense under the law, and enter some evidence, then the prosecution has to rebut my evidence. In some cases, I just have to prove my defense by the preponderance of the evidence. In others, I have to only enter some evidence of the defense and the prosecution then has to disprove it beyond a reasonable doubt.

This is why the definition of what a defense is is listed under the chapter heading of burden of proof. And being a measure of culpability is a great way to look at it. After all, the courts can not possibly say you did not do it (find you innocent). All they ever do is measure your culpability (guilty or not guilty). A not guilty verdict could mean the state did not prove you did it, or you might have had a defense or an affirmative defense, or a lesser culpable mental state than the law required for the offense. All of these are measures of culpability.

ScottDLS wrote:I undertstand your point re: handog, but what about CHL in 1996? I believe this definition of "breaking the law" is subjective. If I clearly, legally, have a "Defense" at the time I commit an act, like carrying concealed on my person with CHL in 1996... am I "breaking the law"? In order to convict me at trial, the prosecution would have to refute my "Defense" beyond a reasonable doubt.

I believe you have answered your own question. If the law specifically allows you to go to trial (a defense requires a trial to be effective) you must have broken the law, though perhaps in an allowable way.

If it was an exception to the law or the law was not applicable (such as unlawfully carrying is not applicable to a CHL), then you would not have broken the law.

I don't see anything subjective about the term breaking the law. All a defense does is shift the burden of proof around a little bit.

I post the law and the real specifics of the law because real life is never as simple as we would like it to be.

But we really can make this simple for day to day use. As a general rule, ask yourself what the average person goes to that location for. If they are going there primarily because of the alcohol, it is almost definitely a 51% location. If they are going there for a meal, it is almost definitely not a 51% place. If they are going for entertainment that they pay for, either a movie or a concert, then it is not likely to be a 51% location either.

We need to remember to look for the 51% signs just in case there has been a mistake made by TABC somewhere along the way, such as the charity theater mentioned in another thread (IIRC) that did not fill in their TABC application correctly and was legally 51% even if not physically so. But the above rule of thumb should work for most cases. Cops will probably go by it unless someone else complains to them about your pistol.

JJVP wrote:

srothstein wrote: If they only sell bottles of sealed alcohol and do not let you open the bottle in the store, if the license says the sign is red then the place is off limits to a CHL.

If they have the Red sign, they have the wrong sign,

GC §411.204. NOTICE REQUIRED ON CERTAIN PREMISES.
(a) A business that has a permit or license issued under Chapter
25, 28, 32, 69, or 74, Alcoholic Beverage Code, and that derives 51
percent or more of its income from the sale of alcoholic beverages for
on-premises consumption as determined by the Texas Alcoholic
Beverage Commission under Section 104.06,

The large bold red print is the critical section. If the license says the sign is red, then the determination by TABC was that they do meet the 51% rule, regardless of what they actually do. This was the whole point of my post.

ralewis wrote:So, this brings us to another question.... If a place has a "BLUE" sign and license, and in fact is really selling >50% in alc sales, to me that means they have the wrong license right? It would surprise me if we as CHL holders are required any due diligence other than what the Liquor license on display actually says when there is a question about a sign posting. Certainly could be wrong about that however.....

No, a person with a CHL has no obligation behind finding out what is typed on the license. The secret is that the amount of money the business makes from alcohol sales is actually irrelevant to whether or not you can carry. The posting of the sign is also irrelevant as most of you already know.

The law says the place is off limits if they make more than 51% of their income from sales of alcoholic beverages for on premise consumption AS DETERMINED BY TABC. Most of the time we forget about the last part, but it can be critical. If you look at the license and it says "SIGN=BLUE" it doesn't matter if they get every cent of their income from sales of glasses of whiskey. TABC has determined, in its infinite wisdom, that they do not meet the 51% rule. The reverse is also true. If they only sell bottles of sealed alcohol and do not let you open the bottle in the store, if the license says the sign is red then the place is off limits to a CHL.

I was going to point this out as a technical correction to an earlier post, but your question actually justifies it and shows why we all need to know and read the exact law, not just the shorthand we all use when we discuss things like this.